EPA Proposal Narrows Dangerous Bush-Era Hazardous Waste Loophole

The U.S. Environmental Protection Agency today proposed significant reforms to a Bush-era rule that stripped federal oversight of companies that handle 1.5 million tons of hazardous waste each year. The new proposal would require companies that recycle hazardous waste to comply with federal requirements to ensure safe containment and handling of these dangerous materials. For the first time, EPA undertook an in-depth analysis of the environmental justice impacts that result from mismanagement of hazardous wastes, and it concluded that better safeguards were needed to prevent toxic releases from burdening low-income communities and communities of color.

The proposed rule, which was issued in response to a lawsuit brought by Earthjustice and the Sierra Club, still exempts recyclers from hazardous waste handling requirements in many instances, but it promises to afford more federal oversight and industry accountability than the Bush-era rule.

“This loophole exemplified the Bush administration’s assault on the environment so we’re pleased the Obama administration has turned the tide for the better,” said Lisa Evans, senior administrative counsel for Earthjustice. “The new rule will lead to far greater protection of the health of our nation’s most vulnerable communities.”

In 1976, Congress passed the Resource Conservation and Recovery Act (RCRA) to ensure that any company that wanted to transport, store, or recycle hazardous waste could do so only under strict regulations that ensure hazardous chemicals do not escape into the environment. But during the waning days of the Bush administration, 1.5 million tons (over 3 billion pounds) of hazardous waste were exempted from RCRA, relieving companies handling the most dangerous substances regulated by EPA from complying with requirements intended to protect human health and the environment. More than 5,000 facilities were potentially eligible to profit from the loophole, including chemical companies, pharmaceutical manufacturers, and the industrial waste industry. Forty-eight facilities in Iowa, New Jersey, Pennsylvania and the Virgin Islands took advantage of the exemption, and at least nine of them are chronic violators that have been subject (or remain subject) to corrective action orders (orders from the state or EPA requiring investigation and cleanup of hazardous waste spills). Fifteen of these facilities have been designated as Superfund sites. Thirty-nine are located in communities where poor people and/or people of color are disproportionately represented.

“So far, the effect of the Bush administration rule has been to strip oversight from facilities with poor environmental records in low income and communities of color,” said Abigail Dillen, an attorney for Earthjustice. “In other words, the facilities that are taking advantage of the new RCRA exemptions are precisely the facilities that raise the greatest public health and environmental justice concerns.”

This revised Definition of Solid Waste rule represents the first ever environmental justice analysis of an EPA rule as directed by the 1994 Bill Clinton presidential Executive Order on Environmental Justice. It also represents careful consideration of the thousands of public comments offered by the public to strengthen the DSW, and increase protections afforded those who live in closest proximity to hazardous waste recycling facilities.

“Disadvantaged communities had unfairly shouldered this burden of toxic waste for far too long,” said Dr. Robert Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University. “The EPA did the only right thing by narrowing this dangerous loophole.”

“The communities that were most affected by this hazardous waste were finally heard,” said Vernice Miller-Travis, vice chair of the Maryland Commission on Environmental Justice and Sustainable Communities. “More work remains to be done, but EPA is now on the right track.”

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